Affirmed and Opinion Filed August 14, 2023 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-22-00462-CR TREVOR RUSSELL, Appellant V. THE STATE OF TE XAS, Appellee On Appeal from the 283rd Judicial District Court Dallas County, Texas Trial Court Cause No. F-2175838-T MEMORANDUM OPINION Before Justices Partida-Kipness, Reichek, and Miskel Opinion by Justice Partida-Kipness In four issues, appellant Trevor Russell challenges his conviction for aggravated assault with a deadly weapon. Russell allege s the trial court erred by failing (1) to include an app lication paragraph regarding self-defense in the jury charge and (2) to instruct the jury the St ate bore the burden of disproving his claim of self-defense. Russell also claims his tr ial counsel was ineffective for failing to object (3) to the omission of the self-defense application paragraph in the jury charge and (4) to the absence of an instructi on the State bore the burden of disproving Russell’s self-defense claim. We affirm the judgment.–2– BACKGROUND Russell was charged with aggravated assault with a deadly weapon for shooting Vernon Woodward. W oodward testified he initia lly considered Russell a friend and would work on his car for him. He stated the men had a disagreement over what Woodward believed was a money-related issu e. Woodward met Russell at Lucky’s Food Mart, a neighborhood hangou t, on May 12, 2021, to try to resolve their issue. Woodward said he tried to ta lk to Russell, but Russell took a posture showing he wanted to fight Woodward. Wh en he realized Russell did not want to discuss the issue, Woodward walked away fro m him and returned to his vehicle. As Woodward was walking, he stated he hear d someone call out his name and say “look out.” Woodward turned and saw Russell r unning towards him. As he approached, Russell pulled out a firearm and shot Woodw ard in the leg. Woodward fell to the ground and Russell shot him eight additiona l times. Woodward stated he could not do anything to stop the shooting but just “h[eld] my hands up.” Woodward had no type of weapon on him when Russell shot hi m. Woodward testif ied he did have a pellet gun in his vehicle but never pulled it out of his car. Russell testified in his own defens e explaining Woodward did some body work on Russell’s vehicle. Russell felt Woodw ard did not properly repair the vehicle and confronted Woodward when the two were at Lucky’s Food Mart. Russell stated the two had a verbal alterca tion and Woodward told him, “I’m not going to fight you–3– . . . I’m going to shoot you.” Russell believ ed Woodward had a rifle in his vehicle and stated Woodward had intent. Russell also testified he belie ved another man who worked at Lucky’s named Mark, was ab out to give Woodward a gun. On crossexamination, Russell stated he had a pell et gun and shot Woodward with the pellet gun. He explained he intended to beat Wo odward to his weapon. When asked about the surveillance video, Russell admitted it showed him running towards Woodward and Woodward’s hands were extended into the air. The trial court included a self-defense in struction in the abstract portion of the jury charge but it was not included in the application portion. After requesting a selfdefense instruction, Russell did not object to the jury charge. The jury convicted Russell of aggravated assault with a deadly weapon. He was sentenced to forty years’ imprisonment. This appeal followed.
ANALYSIS In four issues, which we reorganized, Russell alleges the trial court erred by failing (1) to include an app lication paragraph regarding self-defense in the jury charge and (2) to instruct the jury the St ate bore the burden of disproving his claim of self-defense. Additionally , he argues his trial counsel was ineffective for failing to object (3) to the omission of the self-d efense application paragraph in the jury charge and (4) to the absence of an instru ction the State bore the burden of disproving Russell’s self-defense claim.–4– I. Jury Charge Error The purpose of the trial court’s jury char ge is to instruct the jurors on the law applicable to the case. See T EX

. C ODE C RIM

. P ROC . art. 36.14. The charge is the instrument with which the jury convicts; th erefore, it must be an accurate statement of the law and set out the essen tial elements of the offense. Fields v. State , –– S.W.3d––, ––, No. 01-20-00280-CR, 2022 WL 3268525, at *3 (Tex. App.— Houston [1st Dist.] Aug. 11, 2022, pet. ref’d). A jury ch arge that improperly states the law or the elements of an offense is erroneous. Id

. All alleged jury-charge error must be considered on appellate review regardless of preservation in the trial court. Kirsch v. State , 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). Appe llate review of purported error in a jury charge involves a two-step process. Id . First, we determine whethe r the jury instructions are

erroneous. Id . Second, if error occurred, an appe llate court must analyze the error for harm. Id . The issue of error preservation is not relevant until harm is assessed because the degree of harm required for reversal depends on whether error was preserved or not. Id

. The failure to preserve ju ry-charge error is not a ba r to appellate review but rather establishes the degree of harm necessary for reversal. Warner v. State , 245 S.W.3d 458, 461 (Tex. Crim. App. 2008). Ne ither the State nor the appellant bears the burden on appeal to prove harm. Reeves v. State , 420 S.W.3d 812, 816 (Tex.–5– Crim. App. 2013). Harm is asse ssed in light of the entire ju ry charge, the state of the evidence, including contested issues and th e weight of the probative evidence, the parties’ arguments, and all other re levant information in the record. Alcoser v. State , 663 S.W.3d 160, 165 (Tex . Crim. App. 2022); Cosio v. State , 353 S.W.3d 766, 777 (Tex. Crim. App. 2011). If the “defendant never presents a proposed jury instruction (o r fails to object to the lack of one), any potential error in the charge is reviewed only for ‘egregious harm’ under Almanza .” Oursbourn v. State , 259 S.W.3d 159, 174 (Tex. Crim. App. 2008) (citing Almanza v. State , 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh’g)). When an “appella nt d[oes] not object to th e charge, the error does not result in reversal ‘unless it was so egregi ous and created such harm that appellant was denied a fair trial.’” Warner , 245 S.W.3d at 461 (quoting Almanza , 686 S.W.2d at 171). “Errors that result in egregious harm are those that affect the ‘very basis of the case,’ ‘deprive the defendant of a valu able right,’ or ‘vitally affect a defensive theory.’” Id . at 461–62 (quoting Hutch v. State , 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)). To establish egregious harm, th e “appellant must ha ve suffered actual, rather than theoretical, harm.” Id . at 461. A proper jury charge consists of an abstract of the law and the application paragraphs. Smith v. State , No. 01-22-00471-CR, 2023 WL 4239875, at *6 (Tex. App.—Houston [1st Dist.] June 29, 2023, no pet.). The abstract paragraphs serve as a glossary to help the jury understand con cepts and terms used in the application–6– paragraphs of the charge. Id . The application paragraphs then apply the “pertinent penal law, abstract definitions , and general legal principles to the particular facts and the indictment allegations.” Vasquez v. State , 389 S.W.3d 361, 366 (Tex. Crim. App. 2012). A defendant is entitled to a self-defense instruction when a defensive issue is raised by the evidence, “whether that evid ence is strong or weak, unimpeached or contradicted, and regardless of what the tr ial court may think about the credibility of the defense.” Gamino v. State , 537 S.W.3d 507, 510 (Tex. Crim. App. 2017). The defendant bears the burden of production with respect to a defense, and the issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense. Barnes v. State , No. 05-22-00013-CR, 2023 WL 3964007, at *2 (Tex. App.—Dallas J une 13, 2023, no pet. h.) (m em. op., not designated for publication). To merit a self-defense instru ction, an appellant must have adduced some evidence of his state of mind at the time he used the force at issue. Barnes , 2023 WL 3964007, at *3; Vega v. State , No. 05-16-00882-CR, 2017 WL 1245423, at *2 (Tex. App.—Dallas Ap r. 5, 2017, no pet.) (mem. op., not designated for publication). Russell’s jury charge contained the following: Application Paragraph Now, considering all the law cont ained in the Court’s charge, if you believe from the evidence be yond a reasonable doubt that the Defendant, Trevor Russe ll, on or about the 19 th day of May, 2021, in–7– the County of Dallas and said Stat e, did unlawfully then and there intentionally or knowingly or reckle ssly cause bodily injury to Vernon Woodward, by shooting Vernon Woodwar d with a firearm, and said defendant did use and exhibit a dead ly weapon to wit; a firearm, during the commission of the assault, th en you will find the defendant guilty of aggravated assault with a deadly weapon. If you believe the defendant is not guilty of any offense, or have reasonable doubt thereof, then you will acquit the defendant and say by your verdict “not guilty.”
Self-Defense ‘Reasonable belief’ means a belief that would be held by an ordinary and prudent person in the same circumstances as the defendant. A person is justified in using for ce against another when and to the degree he reasonably believes the fo rce is immediately necessary to protect himself against the other’s use or attempted use of unlawful force. The use of force against another is not justified in response to verbal provocation alone. The use of force against another is not justified if the actor provoked the other’s use or attempted us e of unlawful force, unless: (A) the actor abandons the enc ounter, or clearly communicates

to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and (B) the other nevertheless con tinues or attempts to use unlawful force against the actor. A person is justified in using deadly force against another: (1) if the actor would be justified in using force against another; and–8– (2) when and to the degree th e actor reasonably believes the deadly force is immediately necessary to protect himself against the other’s use of unlawful deadly force. A person who has the right to be pres ent at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force. Russell requested a self-defense instru ction but did not object to the jury charge as it was written. However, the ju ry charge contains error because the requested instruction was only contained in the section titled “Self-Defense” without being included in the application portion of the jury charge. Since Russell did not object to the jury charge as written, the factors must show he suffered egregious harm by the jury charge. We look to the fo llowing factors to determine if Russell suffered egregious harm: the entire jury char ge, the state of the evidence, including contested issues and the weight of the probative evidence, the parties’ arguments, and all other relevant information in the record. Alcoser , 663 S.W.3d at 165. In looking at the jury charge as a w hole, we “ask whether anything in the balance of the jury charge either ex acerbated or ameliorated th[e] error.” French v.
State , 563 S.W.3d 228, 236 (Tex. Crim. App. 2018). The jury charge contained a section which defined the terms necessary to the charge, an app lication paragraph, a section on self-defense, and general eviden tiary instructions which also explained the State’s burden in criminal cases. Ther e was no explanation in the application paragraph regarding what should occur if the jury found Russell acted in self-–9– defense. This does weigh slightly in favor of egregious harm. However, the explanation of the self-defense doctrin e immediately followed the application paragraph. We could a ssume the jury would read the two sections together, and if it had believed Russell’s self-def ense claim, would have found him not guilty of the charged offense. Russell’s testimony did not support a valid self-defense claim, the jury did not believe he acte d in self-defense, and the “presumption is dependent on the evidence that wa s adduced at trial.” Villarreal v. State , 453 S.W.3d 429, 435–36 (Tex. Crim. App. 2015). The state of the evidence presented at trial also did not support Russell’s theory of self-defense. To be entitled to a self-defense inst ruction, Russell must have believed deadly force was immediately necessary. See T EX

. P ENAL C ODE § 9.32. Although Russell testified and stated he fe lt Woodward threatened him, the evidence does not support this assessm ent. Woodward testified he was not armed, and no one was bringing him a firearm to shoot at Ru ssell. The surveillance video admitted into evidence supports Woodward’s testimony. It shows as Woodward walks away, Russell approached and shot him. Russell c ontinued to shoot Woodward as he laid on the ground with his empty hands raised. Because Russell’s claim of self-defense is not supported by the record, the inclusion of the self-defense section in the jury charge was harmless and weighs ag ainst a finding of egregious harm. See Villarreal , 453 S.W.3d at 439.–10– In their arguments to the jury, both sides discussed sel f-defense and its applicability to this offense. The State ar gued Russell acted intentionally in shooting Woodward and explained how his story of what occurred was not plausible based on the evidence presented. Russell, on th e other hand, reiterated the evidence he believed was applicable to a self-defense justification. The fact both sides argued according to their beliefs regarding the a pplicability of self-defense weighs against a finding of egregious harm. Other relevant information in the record shows the trial court explained to the jury it was the State’s burden to prove Russell was guilty beyond a reasonable doubt and Russell did not have any bur den in the case at all. Th e trial court also told the jury it could send out notes if there were any questions or clarification needed regarding the jury charge. No notes we re sent out during jury deliberations. See Gelinas v. State , 398 S.W.3d 703, 709 (Tex. Crim. App. 2013) (no showing of egregious harm when there were no jury notes contained in the record showing confusion). The lack of additional info rmation showing harm weighs against a finding of egregious harm. Russell has not made a showing he was egregiously harmed because based on the evidence in the record, he was not entitled to a self-defense instruction. See Villarreal , 453 S.W.3d at 436. After considerin g the four factors necessary to establish egregious harm, we find Russell ha s failed to show he was actually harmed–11– by the omission of self-defense in the app lication paragraph of the jury charge. His first issue is overruled. In his second issue, Russell also cl aims the trial court erred by failing to include penal code section 2.03(d) in the ju ry charge. Section 2.03(d) states “if the issue of the existence of a defense is submitte d to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.” T EX

. P ENAL C ODE § 2.03(d). Russell’s jury charge stated , “In all criminal cases, the burden of proof is on the State. All persons are pr esumed to be innocent, and no person may be convicted of an offense unless each element of the offense is proven beyond a reasonable doubt.”
In Goodson v. State , as in this case, the charge (1) instructed the jury the burden of proof beyond a reasonable doubt was on the State and (2) contained instructions on the pres umption of innocence. See No. 05-15-00143-CR, 2017 WL 1360193, at *11 (Tex. App. Apr. 12, 2017). Accordingly, (1) “when the charge is viewed as a whole, it placed the burden on the State to show beyond a reasonable doubt that appellant was not acting in self-d efense” and (2) therefore, “[n]o error is shown.” Luck v. State , 588 S.W.2d 371, 375 (Tex. Crim. App. 1979) (rejecting appellant's complaint the jury charge “was erroneous in that it did not inform the jury that the State had to disprove be yond a reasonable doubt the issue of selfdefense”); see also Gonzalez v. State , No. 05–13–00630–CR, 2 014 WL 3736208, at *13–14 Tex. App.–Dalla s July 14, 2014, no pet.) (not designated for publication)–12– (concluding “the trial court did not err by submitting the jury charge without including an instruction that the State wa s required to disprove the issue of selfdefense beyond a reasonable doubt,” wh ere charge met requirements of Luck and penal code section 2.03(d)) (internal citations omitted). Additionally, Russell did not suffer harm because he was not entitled to a self-defense instruction and was not egregiously harmed by the jury charge as written. We overrule hi s second issue.
II. Ineffective Assistance of Counsel In his third and fourth issue, Russell ar gues his trial counsel was ineffective. He states “no competent lawyer would have failed to object to the omission of the application paragraph for self-defense” or “the omission of the reasonable doubt instruction for self-defense.” A successful ineffective assistan ce claim depends on (1) deficient performance and (2) prejudice. Strickland v. Washington , 466 U.S. 668, 694 (1984). In determining whether counsel’s represen tation was deficient, we indulge a strong presumption counsel’s conduct falls within a wide range of reasonable professional assistance, including the possibility counsel’s actions were strategic. Id . at 689. We focus on the totality of the representation afforded and not on individual alleged

errors. Perez v. State , 310 S.W.3d 890, 893 (Tex. Crim . App. 2010). We consider the adequacy of assistance as viewed at the time of trial, not in hindsight. Robertson
v. State , 187 S.W.3d 475, 483 (Tex. Crim. A pp. 2006). We may not second-guess counsel’s strategic decisions and defe nse counsel’s trial strategy cannot be–13– considered ineffective assistance of couns el simply because another attorney would have used a different strategy. Herrera v. State , No. 05-19-00021-CR, 2020 WL 4435309, at *10 (Tex. App.—D allas Aug. 3, 2020, no pet.) (mem. op., not designated for publication). To defeat the presumption of reasona ble representation, an allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate th e alleged ineffectiveness. Prine v. State , 537 S.W.3d 113, 117 (Tex. Crim. App. 2017); Mallett v. State , 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). A silent record provides no explanation for counsel’s actions and will not overcome the strong presump tion of reasonable assistance. Rylander v. State , 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003); Thompson v. State , 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Moreover, “trial counsel should ordinarily be afforded an opportunity to explain his actions be fore being denounced as ineffective.” Rylander , 101 S.W.3d at 111. Where trial counsel is not given an opportunity to explain his actions, counsel should only be found ineffective if counsel’s conduct was “so outrageous that no competent attorney would have engaged in it.” Id . at 117 (quoting Goodspeed v. State , 187 S.W.3d 390, 392 (Tex . Crim. App. 2005)). Russell claims his trial counsel was in effective because he did not object to the omission of self-defense in the applica tion paragraph of the jury charge and penal code section 2.03(d). In his motion for new tr ial, he failed to raise either of these allegations against his trial counsel; theref ore, trial counsel had not been given an–14– opportunity to respond to such claims. See Bone v. State , 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). However, we previously determined Russell was not entitled to a self-defense instruction based on the evidence presented at trial. Trial counsel did request a selfdefense instruction, which wa s included in the jury charge under the “Self-Defense” section. Russell’s testimony did not establish Woodward threatened him with deadly force at any time before Russell shot Wo odward multiple times. His belief he was entitled to exercise self-defense was unfounded and implausible. Although the evidence did not support Russell’s belief in self-defense, trial counsel did pursue Russell’s defensive theory throughout the tr ial in his questioning of witnesses, argument to the jury, and request for the in struction. Russell has not shown how trial counsel’s actions were deficient based on the evidence presented. We overrule his third issue. Russell also alleges trial counsel was ineffective by not requesting the inclusion of penal code s ection 2.03(d). However, as addressed above, the jury charge included an explanation regardin g the State’s burden of proof and how Russell was presumed innocent unless all th e elements of the offense were proven beyond a reasonable doubt. Trial counsel’s l ack of request of the specific language of section 2.03(d) was not deficient when the appropriate language was contained in the jury charge. We overrule Russell’s fourth issue.–15– CONCLUSION Based on the evidence presented in this record, we find Russell was not egregiously harmed by the jury charge as presented and his trial counsel was not ineffective. We affirm th e trial court’s judgment.

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT TREVOR RUSSELL, Appellant

No. 05-22-00462-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 283rd Judicial District Court, Dallas County, Texas Trial Court Cause No. F-2175838-T.Opinion delivered by Justice PartidaKipness. Justices Reichek and Miskel participating. Based on the Court’s opinion of this da te, the judgment of the trial court is AFFIRMED

. Judgment entered this 14th day of August 2023.